EEOC December update clarifies when COVID-19 may be a “disability” under the ADA

On December 14, 2021, the EEOC again updated its guidance with respect to COVID-19 and its implications on employers and employees (the “December Update”).  The December Update provides additional clarification on how COVID-19 can qualify as a disability under the Americans with Disabilities Act and the Americans with Disabilities Act Amendments Act  (collectively referred to as the “ADA”), what employers should consider in responding to employees with COVID-related disabilities, and how employees can understand COVID-19’s impact on their rights under the ADA.[1]  This post provides highlights of the December Update, the EEOC’s full guidance related to COVID-19 can be found here.

EEOC Confirms that COVID-19 may meet the ADA’s definition of Disability.

In order to qualify for ADA protection, an individual must show that they have an actual disability.  In addition, it is against the law to discriminate against individuals who have past records of disability or individuals that an employer perceives are disabled, even if they are not.  The ADA’s definition of disability is much broader than most employers assume.

Unsurprisingly, the December Update confirms that the simple fact of being infected by the virus causing COVID-19 does not always create an “actual” disability under the ADA, but that under certain circumstances, contraction of COVID-19 can be considered an ADA disability.  The EEOC states that a person who is asymptomatic or a person whose COVID-19 infection results in mild symptoms (similar to a cold or flu) that resolve in a matter of weeks (with no other consequences) will not meet the definition of disability for purposes of the ADA as related to their contraction of COVID-19.

However, when COVID-19 substantially limits an employee’s “major life activity,” the employee will meet the definition of disability under the ADA.  The December Update reminds employers that COVID-19 can manifest as either a physical or mental impairment under the ADA, which (depending on the symptoms experienced) may substantially limit major life activities.[2]  Even if the symptoms come and go (for example with “Long COVID”); COVID-19 may be still be considered a disability under the ADA.  Fortunately, the EEOC has provided examples for when COVID-19 may qualify as a disability (and when it will not):

  • When COVID-19 could be considered disability:
    • An individual diagnosed with COVID-19 who initially receives supplemental oxygen for breathing difficulties and has shortness of breath, associated fatigue, and other virus-related effects that last, or are expected to last, for several months, is substantially limited in respiratory function, and possibly major life activities involving exertion, such as walking, and would have an actual disability under the ADA.
    • An individual diagnosed with “long COVID,” who experiences COVID-19-related intestinal pain, vomiting, and nausea that linger for many months, even if intermittently, is substantially limited in gastrointestinal function, among other major life activities, and therefore has an actual disability under the ADA. For other examples of when “long COVID” may be considered a disability, see DOJ/HHS Guidance.
  • When COVID-19 would not be considered a disability:
    • An individual who is diagnosed with COVID-19 who experiences congestion, sore throat, fever, headaches, and/or gastrointestinal discomfort, which resolve within several weeks, but experiences no further symptoms or effects, is not substantially limited in a major bodily function or other major life activity, and therefore does not have an actual disability under the ADA. This is so even though this person is subject to CDC guidance for isolation during the period of infectiousness.
    • An individual who is infected with the virus causing COVID-19 but is asymptomatic. This is so even though this person is subject to CDC guidance for isolation during the period of infectiousness.

The EEOC reminds both employees and employers that even if COVID-19 itself does not qualify as a disability in a specific situation, if the contraction of COVID-19 exacerbates or worsens a separate preexisting condition, the underlying condition may qualify as a disability.  Each situation should be separately and independently analyzed by the employer to determine if a qualifying disability is present.

An employer may have to provide reasonable accommodations for COVID-19 related disabilities.

Under the ADA, if an employee has a qualifying disability, the employer must consider reasonable accommodations at the employee’s request.  COVID-19 related accommodations are treated the same as any other accommodation requests.  The EEOC confirms that even in the COVID-19 context, employers may ask for medical documentation supporting the request.  Once the request is made, the employer must engage in the “interactive process”—meaning that the employer must have a discussion with the employee about possible, feasible accommodations.  While the employer need not provide the requested accommodation, it must propose alternative accommodations, unless any accommodation would pose an undue hardship on the employer.  In addition, if the employee refuses to provide medical documentation or cooperate in the interactive process, the request can be denied.  Failure to provide reasonable accommodations is a violation of the ADA.  Employers should take each request for reasonable accommodation seriously and analyze each request on an individualized basis.

COVID-19 as a ‘regarded as’ disability under the ADA.

The December Update also states that employers may violate the ADA if they terminate, or take other adverse employment action against, an employee for having COVID-19, but only if the employer believed the employee was disabled because of COVID-19 (even if the employee was not, in fact, disabled).  Unless the employer can demonstrate that the employee’s COVID-19 was transitory (lasting or expected to last 6 months or less) and that the employee’s impairment was minor, the adverse employment action may be a violation of the ADA.  The December Update provides the following helpful examples to demonstrate when an employer regards an employee as being disabled because of COVID-19:

  • An employer would regard an employee as having a disability if the employer fires the individual because the employee had symptoms of COVID-19, which, although minor, lasted or were expected to last more than six months.  The employer could not show that the impairment was both transitory and minor.
  • An employer would regard an employee as having a disability if the employer fires the individual for having COVID-19, and the COVID-19, although lasting or expected to last less than six months, caused non-minor symptoms.  In these circumstances, the employer could not show that the impairment was both transitory and minor.

However, simply because an employer regards a person as having a disability it doesn’t mean any adverse action taken by the employer violates the ADA.  There may be justifiable reasons for the employer’s actions unrelated to the perceived disability.  For example, an individual must be qualified for the job, or the employee with COVID-19 may pose a direct threat to the health of others.[3]  Reasonable accommodations need not be considered for employees regarded as having a disability.

Conclusion

The EEOC in its December Update is clear that COVID-19 may be a disability under the ADA.  Employers should prepare for the related accommodation requests that are likely to come.  In addition, employers should consult with legal counsel prior to taking adverse employment action against an employee because of COVID-19, as such adverse employment action may be in violation of the ADA.

[1] The DOJ/HHS guidance on Long-COVID was issued in July 2021.

[2]   Major life activities are defined very broadly under the ADA, and the statute should always be consulted when determining whether an impairment qualifies as a disability.

[3] See our previous blog post for further discussion in the context of vaccine mandates.